BERNARD DOLENZ, Appellant v. JOHN BOUNDY, ET AL., Appellees

AFFIRM; Opinion issued December 2, 2009
 
 
 
In The
 
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01052-CV
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BERNARD DOLENZ, Appellant
V.
JOHN BOUNDY, ET AL., Appellees
.............................................................
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 07-15117-K
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MEMORANDUM OPINION
Before Chief Justice Wright and Justices Richter and Fillmore
 
        Bernard Dolenz appeals the trial court's order dismissing his case after finding that he was a vexatious litigant. In seven issues, Dolenz contends generally: (1) the vexatious litigant statute is unconstitutional; (2) the statute does not apply to pro se lawyers; (3) the trial court erred in finding him a vexatious litigant because there was a reasonable probability that he would prevail in the lawsuit; (4) the evidence is insufficient to support the trial court's vexatious litigant finding; (5) Ted Akin is not entitled to qualified immunity; and (6) the trial court erred in failing to consider deemed admissions. We overrule Dolenz's issues and affirm the trial court's order.
        As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4. Briefly, at one time, Dolenz held both a law license and a medical license. The events leading up to this lawsuit began in 1994. A former patient of Dolenz's medical practice sued Dolenz. John Boundy represented the former patient. Judge Akin was the trial judge. As a result of the claims in that lawsuit, Dolenz was investigated and subsequently convicted of mail fraud.
        Dolenz filed a lawsuit against Akin and Boundy on December 28, 2007. He alleged claims of conspiracy and intentional infliction of emotional distress. Akin filed a motion to have Dolenz declared a vexatious litigant. After a hearing, the trial court granted the motion and ordered Dolenz to post security in the amount of $5,000 in order to proceed with the case. When Dolenz failed to post the security by the stated deadline, the trial court dismissed the case. This appeal timely followed.
        We review a trial court's finding of a vexatious litigant under an abuse of discretion standard. Harris v. Rose, 204 S.W.3d 903, 906 (Tex. App.-Dallas 2006, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
        In determining whether a plaintiff qualifies as a vexatious litigant, the statute sets forth a two-step process. As pertinent in this case, the statute provides:
 
        A court may find a plaintiff a vexatious litigant if the defendant shows that there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant and that:
 
 
 
        (1) the plaintiff, in a seven-year period immediately preceding the date the defendant makes the motion under Section 11.051, has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been:
 
 
 
                (A) finally determined adversely to the plaintiff; . . .
 
Tex. Civ. Prac. & Rem. Code Ann. § 11.054(1) (Vernon 2002). If the trial court determines that the plaintiff is a vexatious litigant, it is required to order the plaintiff to furnish security for the benefit of the moving defendant and determine the date by which the security must be furnished. Tex. Civ. Prac. & Rem. Code Ann. § 11.055 (a) & (b) (Vernon 2002). If the plaintiff does not furnish the security within the time set by the trial court's order, the trial court must dismiss the litigation. Tex. Civ. Prac. & Rem. Code Ann. § 11.056 (Vernon 2002).
        Under section 11.054, Akin first had to establish that there is not a reasonable probability that Dolenz would prevail in the litigation. In his third issue, Dolenz contends that Akin failed to meet this initial burden. In his motion to have Dolenz declared a vexatious litigant, Akin stated that Dolenz's lawsuit related to events that occurred in 1994. Akin also noted that Dolenz's previous attempt to argue tolling of limitations was rejected by this court. See Dolenz v. Boundy, 197 S.W.3d 416, 420 (Tex. App.-Dallas 2006, pet. denied). Dolenz counters that this is the first time he has asserted that the discovery rule tolled limitations. It is true that this tolling argument was not made in the Boundy case.
        His conspiracy claim is based on an allegation that Akin was seeking revenge against him in the 1994 case because Dolenz filed an ethics complaint against him with the State Bar of Texas. In 2006, Dolenz received an affidavit written by a former Akin employee that allegedly supports Dolenz's claims. Although the affidavit may support Dolenz's conspiracy claim, it did not bring the claim to Dolenz's attention for the first time. Dolenz discovered this information when Akin “was throwing the book” at him in the 1994 lawsuit. Moreover, in a previous federal lawsuit, Dolenz alleged that Boundy and Akin had ex parte conversations and that Akin took actions that favored Boundy and his client in the 1994 lawsuit. See Dolenz v. Akin, No. 3:95-CV-1605-P, 1997 WL 21388 at *5 (N.D. Tex. 1997), aff'd, 129 F.3d 612 (5th Cir. 1997). Under these circumstances, we hold that the newly discovered evidence does not impact limitations. We overrule Dolenz's third issue.   See Footnote 1 
        In his fifth issue, Dolenz contends that Akin failed to meet the second requirement under section 11.054. In this case, the trial court determined that, within the last five years, Dolenz had brought five lawsuits that had been determined against him. The record before this Court shows the following five cases filed by and determined against Dolenz:
        (1) Dolenz v. Boundy;
        (2) Dolenz v. Childress;
        (3) Dolenz v. Wells;
        (4) Dolenz v. Corpus Christi Int'l Sch. of Sailing, Inc.; and
        (5) Dolenz v. Pirates Cove Water Supply & Sewage Serv. Corp.
        Dolenz admits that the Boundy and Childress cases were finally determined against him. He contends the case Dolenz v.Wells is inapplicable because it was a bill of review proceeding. This Court has held, however, that a bill of review proceeding is subject to the vexatious litigant statute. Brown v. Texas Bd. of Nurse Examiners, 194 S.W.3d 721, 722 (Tex. App.-Dallas 2006, no pet.).
Thus, Dolenz v. Wells counts.
        Dolenz contends the final two cases do not count because they were filed more than seven years ago, he filed them as a trustee, and he was an attorney at the time he filed the cases. He does not cite any authority that these cases should be treated differently because he filed them as a trustee. Also, the statute states that the cases must be “commenced, prosecuted, or maintained” within the seven-year period. These two cases were maintained within the seven-year period. See Dolenz v. Corpus Christi Int'l Sch. of Sailing, Inc., 2005 WL 3194585 (Tex. App.-Dallas Nov. 30, 2005, pet. denied); Dolenz v. Pirates Cove Water Supply & Sewage Serv. Corp., 2004 WL 2535396 (Tex. App.-Corpus Christi Nov. 10, 2004, no pet.). As to his contention that he was an attorney at the time he filed the cases, he was disbarred several years prior to the cases being finally determined.
        We conclude Akin met both requirements of section 11.054 for the trial court to declare Dolenz a vexatious litigant. We overrule Dolenz's fifth issue.
        In his second issue, Dolenz contends the trial court erred in finding him to be a vexatious litigant because he is a pro se lawyer and the statute applies only to pro se plaintiffs. At the hearing in the trial court, counsel for Akin stated that the State Bar of Texas's website showed that Dolenz was disbarred in June of 2000. Dolenz admitted that he had been disbarred. The cases relied upon in support of the motion to have Dolenz declared a vexatious litigant were maintained and finally determined after Dolenz was disbarred. Thus, Dolenz was not a pro se attorney. Moreover, this Court has held that the vexatious litigant statute applies to a litigant whether he is represented by counsel or not. See Drake v. Andrews, 294 S.W.3d 370, 374-75 (Tex. App.-Dallas 2009, no pet. h.). Accordingly, we overrule Dolenz's second issue.
        In his first and sixth issues, Dolenz contends the vexatious litigant statute is unconstitutional. He contends it is vague and that it violates his rights to due process, equal protection, and access to the courts. A statute prohibiting conduct that is not sufficiently defined is void for vagueness. In re Fisher, 164 S.W.3d 637, 655 (Tex.2005); Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex.1998). Dolenz contends the statute is vague because he could not have determined prior to filing the lawsuit that there was no reasonable probability that he would recover. We disagree. Dolenz knew that the events forming the basis of his claims dated back to 1994. At that time, he investigated Akin and filed a complaint with the State Bar of Texas. Dolenz knew that this Court had affirmed a summary judgment in favor of Boundy on limitations grounds. We hold that the vexatious litigant statute is not unconstitutionally vague.
        Next, Dolenz contends that the statute violates the open courts provision. See Tex. Const. art.1, § 13. A claim of unconstitutionality under the open courts provision will only succeed if the claimant (1) has a cognizable common-law cause of action being restricted by a statute, and (2) the restriction is unreasonable or arbitrary when balanced against the purpose of the statute. Rose v. Doctors Hosp., 801 S.W.2d 841, 843 (Tex.1990); Sax v. Votteler, 648 S.W.2d 661, 666 (Tex.1983). In applying this test, we consider both the statute's general purpose and the extent to which the claimant's right to bring a common-law cause of action is affected. Howell v. Tex. Workers' Comp. Comm'n, 143 S.W.3d 416, 444 (Tex. App.-Austin 2004, pet. denied); Sax, 648 S.W.2d at 666.
        Assuming without deciding that Dolenz had a cognizable common-law cause of action restricted by the vexatious litigant statute, these restrictions are not unreasonable or arbitrary when balanced against the purpose and basis of the statute. The purpose of chapter eleven is to restrict frivolous and vexatious litigation. See Harris, 204 S.W.3d at 905. The legislature sought to strike a balance between Texans' right of access to their courts and the public interest in protecting defendants from those who abuse the Texas court system by systematically filing lawsuits with little or no merit. Willms v. Americas Tire Co., 190 S.W.3d 796, 804 (Tex. App.-Dallas 2006, pet. denied). It does not authorize courts to act arbitrarily, but permits them to restrict a plaintiff's access to the courts only after first making specific findings that the plaintiff is a vexatious litigant based on factors that are closely tied to the likelihood that the litigation is frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054 (Vernon 2002); Leonard v. Abbott, 171 S.W.3d 451, 456-58 (Tex.App.-Austin 2005, pet. denied). Although Dolenz was found to be a vexatious litigant, chapter 11 and the trial court's order did not categorically bar him from prosecuting his lawsuit, but merely required him to post security to cover appellees' anticipated expenses to defend what the circumstances indicate is a frivolous lawsuit. See Tex. Civ. Prac. & Rem. Code Ann. § 11.055 (Vernon 2002).
        Dolenz also contends that because only pro se litigants, and not other individuals such as attorneys are subjected to the vexatious litigant statute, his equal protection rights were violated. Dolenz's contention that only pro se plaintiffs are subject to the vexatious litigant statute is incorrect. As noted earlier, plaintiffs represented by counsel are also subject to the vexatious litigant statute. See Drake, 2009 WL 2488501 at 4. Moreover, attorneys are subject to sanctions in various forms, including monetary sanctions pursuant to rule 13. See Tex. R. Civ. P. 13. We conclude the vexatious litigant statute does not unlawfully discriminate against pro se litigants or violate Dolenz's constitutional right to equal protection. We overrule Dolenz's first and sixth issues.
        In his final issue, Dolenz contends the trial court erred in not considering deemed admissions. Dolenz sent the request for admissions on February 22, 2008. Akin filed his motion to have Dolenz declared a vexatious litigant on March 3, 2008. On the filing of the motion, the litigation is stayed. Tex. Civ. Prac. & Rem. Code Ann. § 11.052(a) (Vernon 2002). Because the litigation was stayed, Akin had no obligation to respond to the discovery request and the trial court did not err in failing to consider the requested discovery as deemed admissions. We overrule Dolenz's seventh issue.
        We affirm the trial court's order.
 
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          CHIEF JUSTICE
 
081052F.P05
 
Footnote 1 Because the limitations ground alone shows that there is not a reasonable probability that Dolenz would prevail, we need not address his fourth issue concerning qualified immunity.